‘I can take care of my enemies all right,” Warren Harding once said. “But my friends, my damn friends, they’re the ones that keep me walking the floor nights!”
In the sense that so irked Harding, Judge Gladys Kessler is a great good friend of Obamacare. The U.S. district-court judge in Washington, D.C., delivered a more telling blow against the law in the course of ruling it constitutional than critics have in assailing it as a travesty.
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At issue is the individual mandate. Two other district-court judges have struck it down on the grounds that Congress doesn’t have the power under the Commerce Clause of the Constitution to require that everyone buy health insurance. If someone doesn’t purchase insurance, he hasn’t done anything. He isn’t engaged in activity that may or may not affect interstate commerce, but in sheer inactivity. Never before has anyone thought Congress could regulate nonevents.
The easy-to-grasp distinction between an activity and inactivity is one of the most powerful legal arguments of Obamacare’s opponents. But they hadn’t yet run up against a jurist as ingenious as Judge Kessler. She brushes the activity/inactivity distinction aside because not doing something is a choice and therefore “mental activity.”
Why hadn’t someone thought of that before? The sophists in Eric Holder’s Justice Department must be embarrassed that they didn’t dredge up this killer rejoinder themselves.
The fundamental question in the Obamacare case is whether there is any constraint on the ability of Congress to regulate economic activity. Do we still live in a system of dual sovereignty, split between the federal government and the states, as set out by the Constitution? Does the federal government only have certain enumerated powers? Is anything beyond its ambit? Judge Kessler’s argument is a ringing “no” on all three counts.
Judge Kessler, a liberal Clinton appointee, takes what has been a Commerce Clause case and practically makes it a matter for the First Amendment. It’s the most self-undermining defense of the constitutionality of a dubious statute since then–solicitor general Elena Kagan told the Supreme Court that under campaign-finance reform, the government could ban certain pamphlets. Kessler, like Kagan before her, does everyone the favor of clarifying the issue.
Judge Kessler writes, “It is pure semantics to argue that an individual who makes a choice to forgo health insurance is not ‘acting,’ especially given the serious economic and health-related consequences to every individual of that choice. Making a choice is an affirmative action, whether one decides to do something or not do something.”
When President Obama is faulted during the next iteration of the Middle East crisis for his passivity, he can shoot back that he’s really quite active — he’s deciding not to do anything. We now know that this constitutes robust — muscular, even — activity.
Under the Kessler principle, there’s no non-conduct that the federal government can’t reach. Every day, most Americans engage in non-activities that affect interstate commerce. If you decide not to buy a house, not to buy a Chrysler, or not to buy a Snuggie, you’ve impacted interstate conduct through affirmative mental actions. We’ve gone from the Constitution giving Congress the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes,” to regulating on the basis of the mental activities of individuals deciding not to do something.
Long ago, the Commerce Clause got stretched beyond recognition. In 1942, the Supreme Court used it to uphold a law penalizing a farmer for growing wheat in excess of his approved allotment, even though it was for his own consumption. At least the poor sap was doing something. According to Kessler, Congress could also punish him for deciding not to grow wheat.
Opponents of Obamacare say that if it’s blessed by the courts, there will no longer be any limiting principle on federal regulatory power. If that seems far-fetched, behold the mental activities of one Judge Gladys Kessler.
So sorry, but there too many flaws in these arguments...
The author makes the same mistake as does the judge. Namely assuming that everything in front of us is "forced choice," when it is not. It's exactly like the multiple-choice tests, which are socialistic forced-choice instuments, that educators attempt to persuade us as being fair and representative, when they are not.
Here's what is clearly wrong... Not making a choice is not necessarily a conscious activity. If it were, then the state of ignorance, largely active at any one time within the population, becomes an "activity."
Not to say that "willful ignorance" isn't active, because it is. But general ignorance, of being in the state of "not knowing," or not realizing that a choice does exist, cannot ever be misconstrued as an willful action or activity. That makes reason stare.
And the state of ignorance in itself is no small exception, but torpedoes the Judges dance around her "semantic defense." On the surface, she may appear clever at best, but in reality, there is no substance to her argument whatsoever!
So, both the author and the Judge make the same error in analysis. There are in reality an infinite number of times when choice is interrupted, limited, or disallowed.... ignornace just being one of them.... all which lay well beyond the notion of activity.
To suggest that all inactivity is really "choice" in disguise, is to even argue against our own biology, whihc is generally "active" but surely beyond the pale of what most of us whould consider choice! Pure stupidity to argue otherwise.
So I ask everybody: If the American People swallow this kind of socialistic swill (double talk at best)... what can we do?
Some people have the insight to sum up things in a way that everybody can understand them. I'm told that these words originally came from the Czech Republic. Perhaps the place of origin is in itself not important. But on the other hand, it's possible that being subject to decades of tyranny and bad government, you begin to realize that such a despicable curse comes first from the people..., not the tyrant. Apparantly we have a lot of work to do, America. A lot!
"The danger to America is not Barack Obama but a citizenry capable of entrusting a man like him with the Presidency. It will be far easier to limit and undo the follies of an Obama presidency than to restore the necessary common sense and good judgment to a depraved electorate willing to have such a man for their president. The problem is much deeper and far more serious than Mr. Obama, who is a mere symptom of what ails America.
Blaming the prince of the fools should not blind anyone to the vast confederacy of fools that made him their prince. The Republic can survive a Barack Obama, who is, after all, merely a fool. It is less likely to survive a multitude of fools such as those who made him their president."
BA, you're making this much more difficult than it should be. Read the Commerce Clause, and you will see no open-ended power given to Congress to compel states to buy or not buy a product.
What is not remarked upon, is that Judge Kesler's absurd ruling will make it more difficult for Justice Kennedy to side with Obama. As the legal opinions pile up, it will be up to SOCTUS to make sense of it. If Judge Kessler's opinion gets appealed, the Appeals Court will either strike down her nonsense or uphold it. Either way it will make it to the SOCTUS and Kennedy will be the deciding vote. And he may be a lot of things, but he rarely upholds such ridiculous and dangerous rulings. In the end. Kesler may have done more damage than good for the President.
Deciding not to do something may be "activity," but the Constitution does not say that Congress has the power to regulate (or control, dictate, prevent, etc) whatever activity it deems to need regulating. It is authorized only to regulate interstate commerce. Commerce means producing, selling, buying.
Judge Kessler is playing the kind of "verbal virtuosity" (Thomas Sowell's phrase) that lawyers master in law school. I recommend Walter Olson's new book Schools for Misrule.
I'd like to ask the Judge if she thinks that the same people who reacted to furiously to the Stamp Act, where the British government tried to compel them to purchase officially stamped paper if they wanted to use paper, would 20 years later have written into the Constitution a provision that was intended to give their government power to make them buy products even if they didn't want them at all. I suppose she'd reply that the intentions of the Constitution's framers really don't matter today. All that matters is what she thinks the Constitution ought to mean. And with that, the rule of law is history.
BG, I don't think Lowry is choosing to consider everything a "forced choice", but rather expounding on Kessler's assessment that treats everything as a forced choice. The judge left no room for ignorance, so neither does Lowry. Perhaps, as "ignorance of the law is no excuse", so Kessler might argue that ignorance of available choices is not an excuse.
But then again, not keeping track of the things on which one must make choices is surely a choice (or would be to the like-minded of Kessler). This is getting into chaos theory, where the flapping of a butterfly's wings causes a monsoon in India.
Yes, the world has an infinite number of relationships and some of these may affect the macro-scale operations of society. I think there is a distinction between not having considered the choices and proactively saying yes or no to a given choce. But Kessler seems to think the government has the right to demand that we consider choices. I don't think this situation is unique. If someone forgets to file their income tax forms, they are not excused from penalties for having forgotten, as opposed to having tried to avoid paying.
However, I don't think the government has an enumerated power to cover requiring the purchase of medical insurance. They could have instituted a tax to cover the costs of a single-payer system, which would have been more difficult to fight, since it would have to be on the grounds that medical care is not the government's responsibility (except veterans and the like). That would be akin to how Social Security, for example, was handled. It also is not within the enumerated powers, yet we here we are.
So if we follow the good judge's argument to the reductio ad absurdum, can we assume that a comatose person makes an "inactive decision"? Or, alternatively, will government, via the courts, get into the business of adjudicating whether a person who didn't make a choice to buy something (a) made an inactive choice or (b) simply was unaware that a choice even existed? Or does not knowing that a choice existed even constitute a valid defense in the first place? Apparently Clairvoyant Law will become a valuable addition to the law school curriculum. If those on the bench are capable of such absurd logic, it certainly doesn't speak well for our society as a whole.
Look guys.. it's pretty simple. You don't buy insurance. You get very sick, hit by a bus, get any infection etc etc. You go to the emergency room. You didn't "not choose" to buy insurance.. you chose to have your insurance paid for by everyone else who actually pays for their insurance, thereby raising their rates, thereby affecting interstate commerce.
That's why prior to 2008, the mandate was a conservative/libertarian idea that attempted to ward off single payer by making sure the health care system remained as private as possible.
Please don't try to analyze what Judge Kessler did. It can't be done. Just get down on your knees and give thanks that she did it. For, as Rich Lowry says, Her Honor "delivered a more telling blow against the law in the course of ruling it constitutional than critics have in assailing it as a travesty."
Thank you, thank you, Judge Kessler.
Now perhaps the Supreme Court will get a chance to shrink the Commerce Clause back down to size.
In the south, we have a "mental activity" prior to actual decision making called: "Fixin' to". So if the decision maker is still in the "fixin' to" stage of decision making, would this exempt them from the law?
This kind of twisted, reaching logic to achieve a specific end should frighten both liberals and conservatives. In order to enact a poorly devised and ill-conceived new government program we have judges stretching the meaning of the commerce clause beyond all recognition. The result is giving the federal government the power to regulate and force the citizenry to do anything they want. Whether or not you want government health care, surely you don't want to give up your liberty to achieve it.
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